BEFORE THE ENVIRONMENTAL PROTECTION AUTHORITY

AT AUCKLAND

IN THE MATTER of the Resource Management Act 1991

BETWEEN NEW ZEALAND TRANSPORT AGENCY

Applicant

AND THE ENVIRONMENTAL PROTECTION AUTHORITY

Consent Authority

AND ROYAL FOREST AND BIRD PROTECTION SOCIETY OF

NEW ZEALAND INCORPORATED

Submitter

LEGAL SUBMISSIONS ON BEHALF OF THE ROYAL FOREST AND BIRD

PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED

5 September 2017

Royal Forest and Bird Protection Society of New Zealand Inc. PO Box 2516 Christchurch 8140 Ph 03 9405524 Solicitor acting: Peter Anderson

MAY IT PLEASE THE COMMISSIONERS

1. Forest & Bird’s key concern is the adverse effects that the East West Link (the Link)

will have on ecological values, particularly on the highly significant ecological values

present at Anns Creek and Mangere Inlet.

2. All the ecologists agreed that the ecological values of the area impacted by the Link

are very high, including that the:

a. lava flow vegetation at Anns Creek is the last remaining area of this ecosystem

type in Auckland; and

b. Mangere Inlet is also an important area for seabirds with thousands of birds,

threatened and at risk species, and migratory birds using it as a feeding area.

3. The ecologists agreed that the Link will have significant adverse effects on those

values, including in the coastal marine area.

4. A critical issue is the way in which the decision is approached. The well known case

of Environmental Defence Society v New Zealand King Salmon Company Ltd1 held

that the decision as to whether or not to grant a plan change involved consideration

of the relevant objectives and policies, paying careful attention to the way in which

they are worded. Some policies are expressed in such directive terms but there is no

choice but to implement them. An overall broad judgment as to whether or not an

activity met the purpose of the Act set out in Part 2 was not appropriate unless the

matter fell within three exceptions.

5. In R J Davidson Family Trust v Marlborough District Council 2 the High Court held that

the Supreme Court’s decision in King Salmon applied to decisions on resource

consents made under section 104. Conversely, New Zealand Transport Agency v

Architectural Centre Inc 3 the High Court found that King Salmon did not apply to

designations and the decision required an overall broad judgment as to whether or

not the application met the purpose of the RMA.

1 [2014] NZSC 38

2 [2017] NZHC 52

3 [2015] NZHC 1991

6. Forest & Bird’s position is that the Board is bound to exercise an overall broad

judgment in relation to the designation but is required to adopt the King Salmon

approach in relation to the resource consents.4

7. The applicant suggests there are two approaches available:5 the King Salmon

approach; or finding that one of the exceptions in King Salmon applies and an overall

broad judgment can be made with respect to both. Forest & Bird says this is not

correct. This case does not fit within any of the exceptions and the only option is the

first option.

8. Policy 11 of the New Zealand Coastal Policy Statement and Policies D9.3(9) and (10)

of the Auckland Unitary Plan (AUP) are critical. They:

a. provide that certain adverse effects must be avoided in the coastal

environment; and

b. give substance to the purpose of the Act with respect to the coastal

environment in Auckland.

9. The Link will have adverse effects that are contrary to these policies. Applying

Davidson and King Salmon in this case, the directive policies of the NZCPS and AUP

must be given effect to. Adverse effects that contravene Policy 11 of the NZCPS

Policies D9.3(9) and (10) of the AUP must be avoided.

10. In King Salmon once it was concluded that the proposed plan change contravened

Policy 13(a) and 15(a), it was declined as no other matters could override the

directive nature of these policies. In my submission, the coastal permit applications

should be considered in the same way. There are no other matters that override the

directive nature of Policy 11 of the NZCPS Policies D9.3(9) and (10) of the AUP. Once

a breach of these policies is found the applications should be declined.

11. Forest & Bird’s view is therefore that the applications for coastal permits must be

declined insofar as they contravene Policy 11 of the NZCPS and Policies D9.3(9) and

(10) of the AUP.

12. These submissions commence with a discussion of the evidence, followed by a

discussion of the law, notably King Salmon, Davidson and Architectural Centre. This

is then applied to the facts of this case. These submissions conclude with a

4 Forest & Bird doesn’t agree with Architectural Centre but considers the Board is bound by it.

5 Opening submissions, paragraph 25.69

discussion about the appropriateness of the offset and the extent to which the TR

Group consent conditions are relevant.

The Evidence

13. Given the nature of the principal submission here, a careful assessment of the

evidence is required.

14. The evidence could not be clearer about the values of ecological values of Anns

Creek and Mangere Inlet. Anns Creek is listed as SEA- M1-21. A marine SEA listed as

for the following reasons:6

Ann's Creek includes a mosaic of vegetation types in an ecological sequence including basalt lava shrubland, freshwater wetlands, saltmarsh, and mangroves. The freshwater wetland comprises an area of deep aquiferfed water dominated by raupo and stream (Ann’s Creek) which is dominated by grasses and sedges. The saltwater wetlands include a range of habitat types distributed along the salinity gradient. These include marsh clubrush (in brackish water – where salt and freshwater meet), glasswort, oioi, ribbonwood and mangrove communities. The lava substrate supports a shrubland community with a patchy distribution of native shrubs but the rocky substrate prevents a thick shrub cover leaving open patches of lava for herbs and ferns. Ann’s Creek is the only site in the region where a suite of native herbs remain growing together on lava, indicative of much of the vegetation cover of early Auckland. These include three threatened Geraniums (G. retrorsum (‘nationally vulnerable’), G. solanderi and Pelargonium inodorum). The lava field at Ann’s Creek is also the type locality for the shrub Coprosma crassifolia collected there by William Colenso in 1846. Mature inanga ( Galaxias maculatus) spawn there and both Australasian bittern ('nationally endangered') and banded rail ('naturally uncommon') are present.

15. In terms of its uniqueness, the ecologists also agree that the parts of the site are

unique: 7

The lava flow vegetation is the last remaining area of this ecosystem type in Auckland. Volcanic boulderfields are identified as a scarce ecosystems type in Auckland and at a national level as a naturally uncommon ecosystem type, with a threat status of endangered. The substrate of lava flows results in a unique assemblage of native plants, including threatened plant species.

16. At Anns Creek East the ecologists agree:8

b) Vegetation removal and disturbance of significant vegetation and habitats is a significant effect;

c) Effects on rare and threatened biodiversity are significant.

17. The Mangere Inlet is has three Marine SEA’s identified for birds; SEA-M1-21w1, SEA-

M2-21w1 and SEA-M2-23a. The latter of these is important as a feeding ground for

migratory birds and threatened species.9

6 Appendix 4, AUP

7 Joint witness statement, page 3

8 Joint witness statement, page 5

The associated intertidal banks (23a, 23c) are a feeding ground for thousands of international migratory and New Zealand endemic wading birds and a variety of other coastal bird species, including a number of threatened species. Mangroves fringe the mouth of the Mangere Inlet (23a) and mangroves on lava flows fringe the Ambury coastline.

18. At Mangere Inlet the ecologists agree: 10

b) Vegetation removal and disturbance of significant vegetation and habitats is a significant effect.

19. Ms Myers confirmed this at the hearing:11

The approach taken to minimise effects and avoid removal of lava shrubland vegetation was agreed at the ecology conferencing as appropriate. Despite these measures, vegetation alteration and removal in Mangere Inlet and Anns Creek east

will have significant [adverse] 12

ecological effects on rare and threatened

biodiversity and ecosystems. As a result, mitigation and offset measures are required and the integrated ecological mitigation and offsets package is supported by all ecologists at conferencing.

20. This was confirmed in questions where Ms Myers accepts there will be significant

adverse effects:

DR PRIESTLEY: But the transplanted plants wouldn't turn up their toes and die; they would keep on going, wouldn't they?

MS MYERS: It can be quite hard to grow some of these threatened plants sometimes.

DR PRIESTLEY: Okay. So in summary, this is totally unique ecosystem with a number of plants which are imperilled, and there's no other way to preserve that type of botanic diversity other than making sure that Anns Creek is maintained and not imperilled.

MS MYERS: Yes.

21. Of critical importance is the fact that Policy 11 of the NZCPS is engaged: 13

DR PRIESTLEY: I may have you wrong here, Mr Enright, but I think what counsel is trying to do, Ms Myers, is to get you to agree that in respect of this rare native flora we are dealing with at Anns Creek, which is indigenous and rare, that the provisions of policy 11 of the Coastal Policy Statement, clearly apply to it. Do you accept that as a proposition?

MS MYERS: Yes, I do. Yes.

22. The ecological conclusion is clear – effects should be avoided:14

9 Appendix 4, AUP

10 Joint witness statement, page 6

11 Transcript page 1516

12 This was addressed in cross examination:

MR ENRIGHT: Thank you for pointing that out, sir. If we look at your hearing summary statement you have provided today, just a wording point first up. In paragraph 4, you referred to: "Despite these measures, vegetation alteration and removal at Mangere Inlet and Anns Creek East will have significant ecological effects." You accept, don't you, that the word "adverse" could go in there - "will have significant adverse ecological effects"? MS MYERS: Significant adverse ecological effects, yes. Yes. 13

Transcript 1555

MR ENRIGHT: Do you agree, at the level of principle, from the perspective of your expertise, we should avoid those effects?

MS MYERS: In principle, yes. And I think we have, through this project, made a huge effort to try and avoid the ecological effects and where we can't, we have mitigated and offset for those.

MR ENRIGHT: But if ecology were the deciding factor here, we wouldn't be choosing this route for the East West Link, would we?

MS MYERS: From an ecological perspective, it would be best for a road not to go through this area, but there are a whole lot of other issues that need to be weighed up.

Relevant planning documents

23. In terms of the coastal environment and CMA, Policy 11 of the NZCPS is pivotal:

Policy 11: Indigenous biological diversity (biodiversity)

To protect indigenous biological diversity in the coastal environment:

a. avoid adverse effects of activities on:

i. indigenous taxa that are listed as threatened

5 or at risk in the New

Zealand Threat Classification System lists;

ii. taxa that are listed by the International Union for Conservation of Nature and Natural Resources as threatened;

iii. indigenous ecosystems and vegetation types that are threatened in the coastal environment, or are naturally rare;

iv. habitats of indigenous species where the species are at the limit of their natural range, or are naturally rare;

v. areas containing nationally significant examples of indigenous community types; and

vi. areas set aside for full or partial protection of indigenous biological diversity under other legislation; and

b. avoid significant adverse effects and avoid, remedy or mitigate other adverse effects of activities on:

i. areas of predominantly indigenous vegetation in the coastal environment;

ii. habitats in the coastal environment that are important during the vulnerable life stages of indigenous species;

iii. indigenous ecosystems and habitats that are only found in the coastal environment and are particularly vulnerable to modification, including estuaries, lagoons, coastal wetlands, dunelands, intertidal zones, rocky reef systems, eelgrass and saltmarsh;

iv. habitats of indigenous species in the coastal environment that are important for recreational, commercial, traditional or cultural purposes;

v. habitats, including areas and routes, important to migratory species; and

14

Transcript 1556

vi. ecological corridors, and areas important for linking or maintaining biological values identified under this policy.

24. The planners addressed the question of the relevant provisions of the AUP and

concluded that the AUP is the primary planning document and the old plan should

be given little weight.15 Forest & Bird agrees with this.

25. Policies D9.3(9) and (10) of the AUP, as approved by the High Court,16 give effect to

Policy 11 of the NZCPS in Auckland. Policy D9.3 provides that effects on indigenous

biodiversity have to be avoided in accordance with Policies D9.3(9) and (10):

D9.3. Policies

Managing effects on significant ecological areas – terrestrial and marine

(1) Manage the effects of activities on the indigenous biodiversity values of areas identified as significant ecological areas by:

(a) Avoiding adverse effects on indigenous biodiversity in the coastal environment to the extent stated in Policies D9.3(9) and (10);

(b) avoiding other adverse effects as far as practicable, and where avoidance is not practicable, minimising adverse effects on the identified values;

(c) remedying adverse effects on the identified values where they cannot be avoided;

(d) mitigating adverse effects on the identified values where they cannot be avoided or remediated; and

(e) considering the appropriateness of offsetting any residual adverse effects that are significant and where they have not been able to be mitigated, through protection, restoration and enhancement measures, having regard to Appendix 8 Biodiversity offsetting.

…

Vegetation management

…

(6) While also applying Policies D9.3(9) and (10) in the coastal environment, avoid as far as practicable the removal of vegetation and loss of biodiversity in significant ecological areas from the construction of building platforms, access ways or infrastructure, …

26. Policy D9.3(9) gives effect to Policy 11(a) of the NZCPS, providing that certain

adverse effects have to be avoided in the coastal environment:

(9) Avoid activities in the coastal environment where they will result in any of the following:

(a) non-transitory or more than minor adverse effects on:

15

Joint Witness Statement, planning, paragraph 3.9 16

Royal Forest and Bird Protection Society of New Zealand Inc v Auckland Council [2017] NZHC 1606

(i) threatened or at risk indigenous species (including Maui’s Dolphin and Bryde’s Whale);

(ii) the habitats of indigenous species that are at the limit of their natural range or which are naturally rare;

(iii) threatened or rare indigenous ecosystems and vegetation types, including naturally rare ecosystems and vegetation types;

(iv) areas containing nationally significant examples of indigenous ecosystems or indigenous community types; or

(v) areas set aside for full or partial protection of indigenous biodiversity under other legislation, including the West Coast North Island Marine Mammal Sanctuary.

(b) any regular or sustained disturbance of migratory bird roosting,

27. Policy D9.3(10) gives effect to Policy 11(b) of the NZCPS, providing that certain

significant adverse effects have to be avoided, and other effects avoided remedied

or mitigated:

(10) Avoid (while giving effect to Policy D9.3(9) above) activities in the coastal environment which result in significant adverse effects, and avoid, remedy or mitigate other adverse effects of activities, on:

(a) areas of predominantly indigenous vegetation;

(b) habitats that are important during the vulnerable life stages of indigenous species;

(c) indigenous ecosystems and habitats that are found only in the coastal environment and are particularly vulnerable to modification, including estuaries, lagoons, coastal wetlands, dunelands, intertidal zones, rocky reef systems, eelgrass and saltmarsh;

(d) habitats of indigenous species that are important for recreational, commercial, traditional or cultural purposes including fish spawning, pupping and nursery areas;

(e) habitats, including areas and routes, important to migratory species;

(f) ecological corridors, and areas important for linking or maintaining biological values; or

(g) water quality such that the natural ecological functioning of the area is adversely affected.

28. Policy F2.2.3 relates to reclamations. Policy F2.2.3(2) refers back to the policies of

the overlays.

F2.2.3. Policies

(1) Avoid reclamation and drainage in the coastal marine area except where all of the following apply:

(a) the reclamation will provide significant regional or national benefit;

(b) there are no practicable alternative ways of providing for the activity, including locating it on land outside the coastal marine area;

(c) efficient use will be made of the coastal marine area by using the minimum area necessary to provide for the proposed use, or to enable drainage; and

(2) Where reclamation or drainage is proposed that affects an overlay, manage effects in accordance with the overlay policies.

29. The effect of this is that the reclamation is undertaken in accordance with the

overlay policies, in this case Policy D9.3(9) and (10), apply to the reclamation.

30. It is evident that this application does not comply with the Policy 11 of the NZCPS

and Policies D9.3(9) and (10).

31. Forest & Bird agrees with Andrea Rickard, the planner called by the applicant, that

the Link is not consistent with Policy 11 of the NZCPS:

11.45 As the Project will result in significant adverse effects on certain matters listed in Policy 11 it is not consistent with that part of the policy.

32. This does not fully cover the situation. The reference to significant adverse effects is

a reference to Policy 11(b). The Link is also inconsistent with Policy 11(a) as there are

adverse effects, some of which are significant, on the matters specified in the policy.

33. This is evident from the ecological evidence referred to above. There are:

a. Adverse effects on:

i. threatened or at risk species indigenous taxa that are listed as threatened or at risk in the New Zealand Threat Classification System lists;

ii. indigenous ecosystems and vegetation types that are threatened in the coastal environment, or are naturally rare;

b. Significant adverse effects on:

i. areas of predominantly indigenous vegetation in the coastal environment;

ii. indigenous ecosystems and habitats that are only found in the coastal environment and are particularly vulnerable to modification, including estuaries, lagoons, coastal wetlands, dunelands, intertidal zones, rocky reef systems, eelgrass and saltmarsh; and

iii. habitats, including areas and routes, important to migratory species.

34. Ms Rickard did not assess Policies D9.3(9) and (10) but noted that the amended

versions at that time reflected Policy 11.17 Forest & Bird agrees and submits that the

17

Ms Rickard’s evidence in chief, 23.3 “I have read these negotiated provisions and if the settlement is approved by the High Court and the Minister of Conservation at a later date I will address this either in my rebuttal evidence or at an appropriate time. However, it seems that the amended provisions generally reflect the wording in NZCPS Policy 11. The AEE and my evidence have already addressed this Policy.”

Link is also inconsistent with Policies D9.3(9) and (10). Policy F2.2.3.9 (reclamation)

provides that reclamations must be assessed in accordance with the relevant overlay

policies, in this case, Policies D9.3(9) and (10).

35. The effects within the coastal marine area are significant. Examples of this include

the effects on Anns Creek Estuary and the effects on wading birds that use the

Mangere Inlet.

Anns Estuary

36. Anns Estuary is a M1 marine SEA whose reference is SEA- M1-21. M1 sites are is

most vulnerable to adverse effects of inappropriate subdivision use or

development.18

Site Name Vegetation Types

Potential effects Plan Values

Overall values

Magnitude of effect

Level of Effect

Anns Creek Estuary (Māngere Inlet)

Lava shrubland, mangrove

Adverse effects on lava shrubland and loss of mangroves, through placement of piers and staging; potential loss of threatened plant habitat; potential loss or degradation of naturally uncommon lava shrubland ecosystem; cumulative loss; Increased weeds.

SEA_T_5304 SEA_M1_21 SEA_Mw1 ONF192

Very High

High Very High

37. This is carried thorough to Table 7 of Dr de Luca’s evidence, which indicates a

moderate level of effect in relation to the CMA:

Potential adverse effects

Ecological value

Magnitude of effect

Level of Effect

Avoid, mitigate or offset

Occupation of the CMA by permanent bridge structures

Moderate Moderate Moderate Partial Offset

Creation of salt marsh habitat along the eastern boundary of the Mangere Inlet (Anns Creek Estuary).

Protect and enhance marine intertidal habitat around Ngarango Otainui Island.

18 Appendix 4 SEAM: Significant Ecological Area – Marine SEAM1: Areas which, due to their physical form, scale or inherent values, are considered to be the most vulnerable to any adverse effects of inappropriate subdivision, use and development. SEAM2: Areas are of regional, national or international significance which do not warrant an SEAM1 identification as they are generally more robust. SEAM1w and SEAM2w: Areas that are identified as significant wading bird areas.

Loss of and disturbance to Anns Creek Estuary vegetation

Very High High Very High Mitigate Creation of salt marsh habitat along the eastern boundary of the Mangere Inlet (Anns Creek Estuary).

Revegetation with Anns Creek East and Pikes Point lava flows with appropriate native lava shrubland species.

Structures affecting connectivity of ecological features / habitats (Anns Creek Estuary primarily)

Moderate Moderate Moderate Mitigate Creation of salt marsh habitat along

the eastern boundary of the Mangere Inlet (Anns Creek Estuary).

38. In terms of birds, the coastal permits that allow for these adverse effects contravene

the following directive policies:

a. Policy 11(a)(i) and (iii) of the NZCPS; and

b. D9.3(9)(a)(iii) of the AUP.

Mangere Inlet

39. All the experts agreed that there would be significant adverse effects on feeding

areas for threatened and at risk species, and migratory species.19

40. In terms of birds, the coastal permits that provide for the adverse effects contravene

the following directive policies:

a. Policy 11(a)(i) and 11(b)(v) of the NZCPS; and

b. D9.3(9)(a)(i) and D9.3(10)(e) of the AUP.

King Salmon, Davidson and Architectural Centre

41. A critical issue here is the basis on which the decision is made. Is an overall broad

judgment required or is King Salmon to be applied?

42. King Salmon involved an application for changes to the Marlborough Sounds

Resource Management Plan so that salmon farming would be changed from a

prohibited to a discretionary activity in eight locations. King Salmon also applied for

resource consents to enable it to undertake salmon farming at these locations, and

at one other, for a term of 35 years.

19

Transcript, page 1608 DR PRIESTLEY: Well, the experts do seem to agree that the effects on feeding areas is going to be significant but do we need any mitigation at all if all these species, including threatened species, are just going to find somewhere else? DR BULL: Yes, I believe we do. It's a permanent loss of habitat, so I believe that mitigation offsets are definitely required.

43. The issue before the Supreme Court has many similarities with the present case.

Directive policies of the NZCPS were not being complied with.

[5] King Salmon’s plan change application in relation to Papatua covered an area that was significantly greater than the areas involved in its other successful plan change applications because it proposed to rotate the farm around the area on a three year cycle. In considering whether to grant the application, the Board was required to “give effect to” the New Zealand Coastal Policy Statement (NZCPS). The Board accepted that Papatua was an area of outstanding natural character and an outstanding natural landscape and that the proposed salmon farm would have significant adverse effects on that natural character and landscape. As a consequence, policies 13(1)(a) and 15(a) of the NZCPS would not be complied with if the plan change was granted….

44. The parallels are obvious. King Salmon involved consideration of an activity that

failed to comply with Policies 13(1)(a) and 15(a) of the NZCPS. These policies are

directive polices, providing for the avoidance of certain effects on landscape and

natural character.

45. Here we have an activity which does not comply with Policy 11 of the NZCPS, and

Polices D9.3(9)(a) and D9.3(10) of the AUP. These policies, in the same vein as

Policies 13 and 15 of the NZCPS, provides for the avoidance of certain effects on

indigenous biodiversity.

46. King Salmon provides guidance for decision making in a plan change application:

“[129] When dealing with a plan change application, the decision-maker must first identify those policies that are relevant, paying careful attention to the way in which they are expressed. Those expressed in more directive terms will carry greater weight than those expressed in less directive terms. Moreover, it may be that a policy is stated in such directive terms that the decision-maker has no option but to implement it. So, “avoid” is a stronger direction than “take account of”. That said however, we accept that there may be instances where particular policies in the NZCPS “pull in different directions”. But we consider that this is likely to occur infrequently, given the way that the various policies are expressed and the conclusions that can be drawn from those differences in wording. It may be that an apparent conflict between particular policies will dissolve if close attention is paid to the way in which the policies are expressed.”

47. In King Salmon, the Court held that the directive and specific wording of policies

13(1)(a) and 15(a), with strong words such as “avoid”, meant that decision makers

had no choice but to implement them.

Our concern is with the interpretation of “avoid” as it is used in s 5(2)(c) and in relevant provisions of the NZCPS. In that context, we consider that “avoid” has its ordinary meaning of “not allow” or “prevent the occurrence of”. In the sequence “avoiding, remedying, or mitigating any adverse effects of activities on the environment” in s 5(2)(c), for example, it is difficult to see that “avoid” could sensibly bear any other meaning. Similarly in relation to policies 13(1)(a) and (b) and 15(a) and (b), which also juxtapose the words “avoid”, “remedy” and “mitigate”.

This interpretation is consistent with objective 2 of the NZCPS, which is, in part, “[t]o preserve the natural character of the coastal environment and protect natural features and landscape values through … identifying those areas where various forms of subdivision, use, and development would be inappropriate and protecting

48. The Supreme Court concluded that the Policies 13(1)(a) and (b) and 15(a) and (b)

provided something of a bottom line:

[132] Policies 13(1)(a) and (b) and 15(a) and (b) do, in our view, provide something in the nature of a bottom line. We consider that this is consistent with the definition of sustainable management in s 5(2), which, as we have said, contemplates protection as well as use and development. It is also consistent with classification of activities set out in s 87A of the RMA, the last of which is activities that are prohibited. The RMA contemplates that district plans may prohibit particular activities, either absolutely or in particular localities. If that is so, there is no obvious reason why a planning document which is higher in the hierarchy of planning documents should not contain policies which contemplate the prohibition of particular activities in certain localities.

49. The Supreme Court also noted that the objectives and policies of the NZCPS reflect

particular choices and that the NZCPS could provide for the protection of certain

parts of the coastal environment.

[152] The NZCPS is an instrument at the top of the hierarchy. It contains objectives and policies that, while necessarily generally worded, are intended to give substance to the principles in pt 2 in relation to the coastal environment. Those objectives and policies reflect considered choices that have been made on a variety of topics. As their wording indicates, particular policies leave those who must give effect to them greater or lesser flexibility or scope for choice. Given that environmental protection is an element of the concept of sustainable management, we consider that the Minister was fully entitled to require in the NZCPS that particular parts of the coastal environment be protected from the adverse effects of development. That is what she did in policies 13(1)(a) and 15(a), in relation to coastal areas with features designated as “outstanding”. As we have said, no party challenged the validity of the NZCPS.

50. King Salmon held that an overall broad judgment was not appropriate except in

three limited circumstances invalidity, incomplete coverage or uncertainty of

meaning within the planning documents.20

20

[90] The difficulty with the argument is that, as we have said, the NZCPS was intended to give substance to the principles in pt 2 in respect of the coastal environment by stating objectives and policies which apply those principles to that environment: the NZCPS translates the general principles to more specific or focussed objectives and policies. The NZCPS is a carefully expressed document whose contents are the result of a rigorous process of formulation and evaluation. It is a document which reflects particular choices. To illustrate, s 5(2)(c) of the RMA talks about “avoiding, remedying or mitigating any adverse effects of activities on the environment” and s 6(a) identifies “the preservation of the natural character of the coastal environment (including the coastal marine area) … and the protection of [it] from inappropriate subdivision, use and development” as a matter of national importance to be recognised and provided for. The NZCPS builds on those principles, particularly in policies 13 and 15. Those two policies provide a graduated scheme of protection and preservation based on the features of particular coastal localities, requiring avoidance of adverse effects in outstanding areas but allowing for avoidance, mitigation or remedying in others. For these reasons, it is difficult to see that resort to pt 2 is either necessary or helpful in order to interpret the policies, or the NZCPS more generally, absent any allegation of invalidity, incomplete coverage or uncertainty of meaning. The notion that decision-makers are entitled to decline to implement aspects of the NZCPS if they consider that appropriate in the circumstances does not fit readily into the hierarchical scheme of the RMA.

51. In relation to indigenous biodiversity, the NZCPS reflects a choice that certain effects

on indigenous vegetation, as set out in Policy 11, are to be avoided,

52. The Supreme Court found that, as the proposed plan change in relation to Papatua

did not give effect to Policies 13(1)(a) and 15(a) and, accordingly should not have

been granted.

[153] The Board accepted that the proposed plan change in relation to Papatua at Port Gore would have significant adverse effects on an area of outstanding natural character and landscape, so that the directions in policies 13(1)(a) and 15(a) of the NZCPS would not be given effect to if the plan change were to be granted. Despite this, the Board granted the plan change. It considered that it was entitled, by reference to the principles in pt 2, to carry out a balancing of all relevant interests in order to reach a decision. We consider, however, that the Board was obliged to deal with the application in terms of the NZCPS. We accept the submission on behalf of EDS that, given the Board’s findings in relation to policies 13(1)(a) and 15(a), the plan change should not have been granted. These are strongly worded directives in policies that have been carefully crafted and which have undergone an intensive process of evaluation and public consultation. The NZCPS requires a “whole of region” approach and recognises that, because the proportion of the coastal marine area under formal protection is small, management under the RMA is an important means by which the natural resources of the coastal marine area can be protected. The policies give effect to the protective element of sustainable management.

53. King Salmon applied to a plan change and a critical issue is the extent to which the

King Salmon applies to resource consents and designations. The key authorities

provides for different approaches to resource consents and designations.

54. In Davidson the High Court considered whether King Salmon applied to resource

consents.21 Justice Cull summarised the reasoning of the decision in King Salmon as

follows:

[69] The Supreme Court overturned the Board’s decision. Because the NZCPS was intended to give substance to the provisions of Part 2 of the RMA, there was no need to refer back to Part 2 when considering the plan change. In summary, the Court gave the following reasons for this interpretation: (a) There is a reasonably elaborate process for issuing a coastal policy statement,

making it implausible for Part 2 to be the ultimate determinant, not the NZCPS. (b) The NZCPS gives Ministers some control over regional decisions, so it is difficult

to see why the RMA would require regional councils to go beyond the NZCPS to Part 2, with Part 2 effectively trumping the NZCPS.

55. The High Court held that King Salmon did apply to resource consents, pointing to the

inconsistency of having decision makers more constrained in making plans than in

deciding resource consents.

[76] I find that the reasoning in King Salmon does apply to s 104(1) because the relevant provisions of the planning documents, which include the NZCPS, have

21

Starting at paragraph 68

already given substance to the principles in Part 2. Where, however, as the Supreme Court held, there has been invalidity, incomplete coverage or uncertainty of meaning within the planning documents, resort to Part 2 should then occur. [77] I also consider that the Environment Court’s decision was consistent with King Salmon and the majority correctly applied it to the different context of s 104. I accept Council’s submission that it would be inconsistent with the scheme of the RMA and King Salmon to allow Regional or District Plans to be rendered ineffective by general recourse to Part 2 in deciding resource consent applications. It could result in decision-makers being more restrained when making district plans, applying the King Salmon approach, than they would when determining resource consent applications.

56. New Zealand Transport Agency v Architectural Centre Inc 22

addressed the same

question with respect to designations. Justice Brown held that s 171 provided for a

different approach to designations from plan changes. The reference to “subject to

Part 2” in section 171, meant that the key question was whether the application

achieved Part 2. An overall broad judgment was required. King Salmon was

distinguished.

57. In my submission, the legal situation is clear. In respect of the application for

resource consent, the Board is bound by Davidson. In respect of the designation,

the Board is bound by Architectural Centre.23

58. This does create something of an anomaly, as there seems no reason why resource

consents and designations should be treated differently. It seems likely that this

anomaly will be addressed through the appellate courts and a consistent approach

will be adopted to designations and resource consents in time.

59. However, until this occurs, , while it can exercise an overall broad judgment with

respect to the designation, the Board is required to adopt the approach set out in

King Salmon with respect to the resource consents.

Analysis

60. Forest & Bird’s position can be simply put. The link contravenes Policy 11 of the

NZCPS and Policies D9.3(9) and (10) of the AUP. King Salmon applies to the coastal

permits that contravene these policies and provide something of a bottom line.

61. When the relevant policies and objectives are evaluated, taking into account the

way in which they are worded, only one conclusion is available. In the same way that

the Supreme Court found that Policies 13 and 15 were directive policies that had to

22

[2015] NZHC 1991 23

Forest & Bird considers that Architecture Centre was wrongly decided and reserves its position in this regard.

be implemented, in this case, Policy 11 of the NZCPS and Policies D9.3(9) and (10) of

the AUP are directive policies that must be implemented. The coastal permits must

be declined.

62. As noted previously, Ms Myers considered that if the decision was made on

ecological grounds, the Link would go elsewhere, but that there were other issues

that required consideration.24

63. It is submitted that this is not correct. Once the link is found to contravene Policy 11

of the NZCPS and Policies D9.3(9) and (10) of the AUP, no other matters override

these directive policies. Policy 11 of the NZCPS and Policies D9.3(9) and (10) of the

AUP drive an ecological evaluation to an ecological conclusion.

64. The biodiversity policies are not the only policies to take an avoid approach. Policy

F2.2.3 provides for the avoidance of reclamation, except in certain circumstances. In

my submission this is an equally directive policy. It is submitted that, similar to

Policies D9.3(9) and (10), a reclamation that contravened this policy would not be

allowed.

65. There is no inconsistency in the policy framework. Policy F2.2.3(2) provides that, in

addition to the matters addressed in Policy F2.2.3(1), the overlay policies apply to

reclamations.

66. In opening submissions, the applicant suggests there are two approaches available;25

the approach that distinguishes between the designations and resource consents or

finding that one of the exceptions in King Salmon apply and an overall broad

judgment can be made with respect to both.

67. In my submission this is not correct. This case does not fit within any of the

exceptions and the only option is the first option. There is no invalidity, incomplete

coverage or uncertainty of meaning within the planning documents that justifies

exercising an overall broad judgment.

Offset and Compensation Package

68. If the submissions above are not accepted, Forest & Bird has serious concerns about

the proposed offset. Biodiversity offset is defined in the AUP as:

Biodiversity offset

24

Transcript 1556 25

paragraph 25.69

Compensation for significant residual adverse biological effects arising from subdivision, use and development.

69. This is a particularly unhelpful definition. A more helpful definition is that proposed

by the Business Biodiversity Offsetting Project and accepted by the Environment

Court: 26

Biodiversity offsets are measurable conservation outcomes resulting from actions designed to compensate for significant residual adverse biodiversity impacts arising from project development after appropriate prevention and mitigation measures have been taken. The goal of biodiversity offsets is to achieve no net loss and preferably a net gain of biodiversity on the ground with respect to species composition, habitat structure, ecosystem function and people’s use and cultural values associated with biodiversity.

70. Appendix 8 of the AUP addresses offsetting:

Biodiversity Offsetting

The following sets out a framework for the use of biodiversity offsets. It should be read in conjunction with the New Zealand government Guidance on Good Practice Biodiversity Offsetting in New Zealand, New Zealand Government et al, August 2014 (or any successor document):

(1) Restoration, enhancement and protection actions will only be considered a biodiversity offset where it is used to offset the significant residual effects of activities after the adverse effects have been avoided, remedied or mitigated.

(2) Restoration, enhancement and protection actions undertaken as a biodiversity offset are demonstrably additional to what otherwise would occur, including that they are additional to any avoidance, remediation or mitigation undertaken in relation to the adverse effects of the activity.

(3) Offset actions should be undertaken close to the location of development, where this will result in the best ecological outcome.

(4) The values to be lost through the activity to which the offset applies are counterbalanced by the proposed offsetting activity, which is at least commensurate with the adverse effects on indigenous biodiversity. Where possible the overall result should be no net loss, and preferably a net gain in ecological values.

(5) The offset is applied so that the ecological values being achieved through the offset are the same or similar to those being lost.

71. There are three main concerns about the offset proposed:

a. The research component of the offset;

b. The additionality of elements of the offset; and

c. The finely balanced nature of the offset.

Research

72. A component of the offset is a research scholarship.

26

Day v Manawatu Wanganui Regional Council [2013] NZEnvC at 3-81

73. A research scholarship is not an offset. Offset relate to restoration, enhancement

and protection actions. A research scholarship is not a restoration, enhancement or

protection action.

74. Royal Forest and Bird Protection Society of New Zealand Inc v Buller District Council27

held that offsets were not mitigation28 and should be considered under section

104(1)(a),29 which allows positive effects to be taken into account.

75. In order to be considered under section 104(1) there has to be a positive effect on

the environment. There is no positive effect on the environment from a research

scholarship. The research scholarship is therefore not relevant and should be given

no weight.

Additionality

76. Principle 2 of Appendix 8 provides that the offset must be “demonstrably

additional”. The offset is not additional and certainly not demonstrably so.

77. This was dealt with in cross examination of Ms Myers by Mr Littlejohn. The key

exchange is:

MR LITTLEJOHN: So as a condition of enabling some filling works in two areas on the site, TR Group was obliged to revegetate, restore and manage on a long-term basis by way of covenant the lava shrubland and wetland areas of the site. You understand that's the impact of the consent?

MS MYERS: Yes, the consent provides for a lava shrubland management plan.

MR LITTLEJOHN: It's your view that simply by taking the site into public ownership, establishing a working group and undertaking a more integrated approach that that somehow provides mitigation for the NZ Transport Agency's direct effects with the construction of this road on the lava shrubland area? Is that your evidence?

MS MYERS: Yes, I do, and I stand by that. Yes.

78. The approach effectively provides that the restoration of one bit of land can be used

to offset two developments. Forest & Bird is very concerned that it would become

accepted practice that pieces of land could be used as offsets for multiple

27

[2013] NZRMA 293 28

[62] I agree that that offset is not “mitigation” as the word is used in s 5(2)(c). There is no reason to go beyond the normal meaning of the term mitigate, particularly as it occurs in a phrase, “avoiding, remedying or mitigating”. 29

[60] There was general agreement between counsel, and the Court, that s 104(1)(a) allows the taking into account of positive effects on the environment proffered by the applicant in consideration for allowing the activity. In short, offsets can be had regard to when exercising the discretion in s 104.

developments for largely the same effects. This is exactly what the additionality

principle is aimed at ensuring does not occur.

79. The applicant’s approach seems to imply that TR Group will not comply with the

conditions of its consents. There is a presumption that an applicant will comply with

the conditions of their consent. In New Zealand Suncern Construction Ltd v Auckland

City Council, 30 the High Court held that an applicant’s compliance history could only

ever be a peripheral consideration.

80. It is submitted that the same applies when it comes to considering whether another

party will comply with the conditions of their consent. There is no suggestion that TR

Group has not complied with the conditions on their consent. There is no basis for

concluding that TR Group will not comply with the conditions of their consent or the

Council will not be vigilant in enforcing those conditions.

81. Covenants are extensively used as a method of protecting areas of indigenous

vegetation and effectively.

82. Ms Myers considered:

a. weed control was the “most important part of the whole project”31.

b. the key benefit of that element of the offset is public ownership and a working

group.

83. In my submission, the benefits of public ownership and a working group are

marginal at best. For this reason, the offset so far as it relates to areas covered by

the TR Group consent, should be given very little weight.

Conclusion

84. Policy 11 of the NZCPS and Policies D9.3(9) and (10) of the AUP give substance to the

purpose of the RMA in the coastal environment. These are directive policies,

requiring the avoidance of certain effects, and provide something of a bottom line.

85. Applying Davidson, and considering the way in which the relevant policies are

worded, there is no choice but to implement these directive policies.

86. The Link contravenes Policy 11 of the NZCPS and Policies D9.3(9) and (10) of the AUP

in much the same way that the Papatua Salmon Farm contravened Policies 13(1)(a)

30

[1997] 3 NZELR 230 at 244-245 31

Transcript, page 1582

and 15(a) of the NZCPS. The Supreme Court found that nothing overrode these

directive policies, which had to be implemented.

87. Policies 13(1)(a) and 15(a) of the NZCPS are indistinguishable from Policy 11 of the

NZCPS and Policies D9.3(9) and (10). These are all directive policies requiring the

avoidance of certain effects. The same outcome should result here. These policies

have to be implemented, the coastal permits which contravene them must be

declined as a matter of law.

Dated 5 September 2017

______________________ Peter Anderson Counsel for the Royal Forest and Bird Protection Society of New Zealand Incorporated